Incapacity: Ill health or injury
Incapacity on the grounds of ill health or injury may be temporary or permanent. If an
employee is temporarily unable to work in these circumstances the employer should
investigate the extent of the incapacity or the injury. If the employee is likely to be absent for a
time that is unreasonably long in the circumstances, the employer should investigate all the
possible alternatives short of dismissal.
When alternatives are considered, relevant factors might include: the nature of the job,
 the period of absence,
 the seriousness of the illness or injury and
 the possibility of securing a temporary replacement for the ill or injured employee.
In cases of permanent incapacity, the employer should ascertain the possibility of securing
alternative employment, or adapting the duties or work circumstances of the employee to
accommodate the employee s disability.
With regard to the process of the investigation referred to above, the employee should be
allowed the opportunity to state a case in response and to be assisted by a trade union
representative or fellow employee.
See Notice
to attend investigation regarding an employee's incapacity.
See letter
from Employee Representative / Attorney requesting details of incapacity
from practitioner
The degree of incapacity is relevant to the fairness of any dismissal. The cause of the
incapacity may also be relevant.
In the case of certain kinds of incapacity, for example alcoholism or drug abuse, counselling
and rehabilitation may be appropriate steps for an employer to consider.
Other examples may be: gambling addictions; pornography addictions.
It may be appropriate to establish an employee assistance programme. For an example of such a
policy, see Pro Forma EAP.
Particular consideration should be given to employees who are injured at work or who are
incapacitated by work-related illness. The courts have indicated that the duty on the employer
to accommodate the incapacity of the employee is more onerous in these circumstances.
Guidelines in cases of dismissal arising from ill health or injury
Any person determining whether a dismissal arising from ill health or injury is unfair should
consider(a) whether or not the employee is capable of performing the work; and
(b) if the employee is not capable(i) the extent to which the employee is able to perform the work;
(ii) the extent to which the employee's work circumstances might be adapted to accommodate
disability, or, where this is not possible, the extent to which the employee's duties might be
adapted; and
(iii) the availability of any suitable alternative work.
Due to the sensitive nature of employee's medical records, it is necessary to obtain the employee's
consent to release or review his/her medical records, or request information from his/her medical
practitioner.
For an example of such a consent form, see Employer Consent to Release Medical
Information.
Special Provisions
Employment Equity Act 55 of 1998
Chapter II - Prohibition of Unfair Discrimination
Elimination of unfair discrimination
5. Every employer must take steps to promote equal opportunity in the workplace by
eliminating unfair discrimination in any employment policy or practice.
Prohibition of unfair discrimination
6. (1) No person may unfairly discriminate, directly or indirectly, against an employee, in any
employment policy or practice on one or more grounds, including race, gender, sex,
pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual
orientation, age, disability, religion, HIV status, conscience, belief. political opinion. culture,
language and birth.
(2) It is not unfair discrimination to(a) take affirmative action measures consistent with the purpose of this Act: or
(b) distinguish, exclude or prefer any person on the basis of an inherent requirement of a job.
Note: Harassment of an employee is a form of unfair discrimination and is prohibited on any
one, or a combination of grounds of unfair discrimination listed in subsection (1).
Medical testing
7. (1) Medical testing of an employee is prohibited, unless- (a) legislation permits or requires
the testing; or
(b) it is justifiable in the light of medical facts, employment conditions, social policy. the fair
distribution of employee benefits or the inherent requirements of a job.
(2) Testing of an employee to determine that employee's HIV status is prohibited unless such
testing is determined to be justifiable by the Labour Court in terms of section 50(4) of this Act.
Note (1). These persons are not defined as "employees" under the Labour Relations Act.
However. they could bring unfair discrimination matters before the Constitutional Court, or
lodge complaints with the Human Rights Commission.
Psychological testing and other similar assessments
8. Psychological testing and other similar assessments of an employee are prohibited unless
the test or assessment being used(a) has been scientifically shown to be valid and reliable;
(b) can be applied fairly to all employees; and
(c) is not biased against any employee or group.
Applicants
9. For purposes of sections 6, 7 and 8, "employee" includes an applicant for employment.
Disputes concerning this Chapter
10. (1) In this section, the word "dispute" excludes a dispute about an unfair dismissal, which
must be referred to the appropriate body for conciliation and arbitration or adjudication in
terms of Chapter VIII of the Labour Relations Act.
(2) Any party to a dispute concerning this Chapter may refer the dispute in writing to the
CCMA within six months after the act or omission that allegedly constitutes unfair
discrimination.
(3) The CCMA may at any time permit a party that shows good cause to refer a dispute after
the relevant time limit set out in subsection (2).
(4) The party that refers a dispute must satisfy the CCMA that(a) a copy of the referral has been served on every other party to the dispute; and
(b) the referring party has made a reasonable attempt to resolve the dispute.
(5) The CCMA must attempt to resolve the dispute through conciliation.
(6) If the dispute remains unresolved after conciliation(a) any party to the dispute may refer it to the Labour Court for adjudication; or
(b) all the parties to the dispute may consent to arbitration of the dispute
(7) The relevant provisions of Parts C and D of Chapter VII of the Labour Relations Act, with
the changes required by context, apply in respect of a dispute in terms of this Chapter.
Burden of proof
11. Whenever unfair discrimination(2) is alleged in terms of this Act. the employer against
whom the allegation is made must establish that it is fair.
Note (2) Section 6(1) lists the following as prohibited grounds of discrimination: "race, gender,
sex. pregnancy, marital status, family responsibility, ethnic or social origin, colour. sexual
orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture,
language and birth".
Code of Good Practice on key aspects of HIV/AIDS and employment
(extracts)
5. PROMOTING A NON-DISCRIMINATORY WORK ENVIRONMENT
5.1 No person may unfairly discriminate against an employee, or an applicant for
employment, on the basis of his or her HIV status. This means that no person with. HIV or
AIDS shall be treated unfairly within the employment relationship or within any employment
policies or practices, including with regard to:
i. recruitment procedures, advertising and selection criteria;
ii. appointments and the.appointment process;
iii. job classification or grading;
iv. remuneration, employment benefits and terms and conditions of employment;
v. job assignments;
vi. the working environment and facilities;
vii. training and development;
viii. performance evaluation systems;
ix. promotion, transfer and demotion;
x. disciplinary measures short of dismissal; and
xi. termination of services.
5.2 Employers and employees should adopt appropriate measures to ensure that employees
with HIV and AIDS are not unfairly discriminated against and are protected from victimisation
through positive measures such as:
i. the development of HIV/AIDS policies and programmes for the workplace;
ii. awareness, education and training on the rights of all persons with regard to HIV and
AIDS;
iii. mechanisms to promote acceptance and openness around HIV/AIDS in the
workplace;
iv. support for all employees infected or affected by HIV and AIDS; and
v. grievance procedures and disciplinary measures to deal with HIV related complaints
in the workplace.
6.1 HIV Testing
6.1.1 No employer may require an employee, or an applicant for employment, to undertake an
HIV test in order to ascertain that employee's HIV status, unless authorisation has been
obtained from the Labour Court. This includes HIV testing:
i. during an application for employment;
ii. as a condition of employment;
iii. during procedures related to termination of employment;
iv. as an eligibility requirement for training or staff development programmes. and
v. as an access requirement to obtain employee benefits.
6.1.2 Where HIV testing has been authorised by the Labour Court it should be carried out in
terms of the conditions prescribed by the Court with regard to:
i. the provision of counselling;
ii. the maintenance of confidentiality;
iii. the period during which the authorisation for HIV testing applies;
iv. the category or categories of jobs or employees in respect of which the authorisation
for HIV testing applies.
6.1 .3 HIV testing, where permissible and where a court order has not specifically prescribed
the conditions under which such testing may take place, should be carried out after obtaining
voluntary, informed consent. It should further be accompanied by pre- and post-test
counselling.
10. DISMISSAL
10.1 Being HIV positive or having AIDS is not a sufficient reason to dismiss a person.
Employees with HIV/AIDS may not be dismissed solely on the basis of their HIV status.
10.2 Where an employee has become too ill to work, an employer is obliged to follow
accepted guidelines regarding dismissals for incapacity before terminating an employee's
services. These include attempts to adapt the employee's duties, to accommodate the
employee's disability and to find alternative employment for the employee
10.3 The employer should ensure that as far as possible, the employee's right to
confidentiality regarding his or her HIV status is maintained during any incapacity
proceedings. An employee cannot be compelled to undergo an HIV test or to disclose his or
her HIV status as part of such proceedings unless the Labour Court authorised such a test.
12.2 Managing HIV Positive Employees
1 2.2.1 HIV infected employees should continue to work under normal conditions in their
current employment for as long as they are medically fit to do so.
12.2.2 Employers should work to maximise the performance of all employees. This includes
reasonable accommodation for employees who develop conditions associated with HIV/AIDS
to help ensure that they maintain their employment for as long as possible.
1 2.2.3 Employees with HIV or AIDS have the same rights to sick leave as other employees,
and a joint investigation by the employer and employee should be undertaken to consider
alternative sick leave allocations, in accordance with the Basic Conditions of Employment Act,
No 75 of 1997
12.2.4 Employers should take all reasonable steps to assist employees with referrals to
appropriate health, welfare and psycho-social facilities within the community, if such services
are not provided at the workplace.
NOTIFICATION TO ATTEND AN INCAPACITY INVESTIGATION
Employee Name
Position
Employee Number
Store / Kitchen / Department
Manager’s Name
Manager’s Position
Date
YOU ARE HEREBY NOTIFIED TO ATTEND AN INVESTIGATION ON:
DATE: .............................TIME: ................. VENUE: .....................
Wherein you will be consulted on your capacity to fulfill your job function as
___________________________ in that:
(i)
Over the period ______________ to _________________ you
have been absent from work for a period of ______________
days arising from your alleged incapacity.
(ii)
Such absence has exceeded by ___________ days your sick
leave entitlement.
The purpose of this consultation will be to determine: (a)
Whether or not you are capable of performing your responsibilities as a
____________________; and if you are not deemed to be capable,
(i)
The extent to which you are able to perform this work;
(ii)
The extent to which your work circumstances might be adapted to
accommodate any disability, or, where this is not possible, the extent to
which the your duties might be adapted; and
(iii)
The availability of any suitable alternative work.
In making such a determination, regard will be had to the following: (b)
The nature, extent and duration of such incapacity, now and in the
future;
(c)
The nature of your current job responsibilities, the period of absence, the
seriousness of the illness and the possibility of securing a temporary
replacement or alternative employment.
(d)
And whether counseling and rehabilitation may be appropriate in the
circumstances.
Should it be determined that such incapacity is cannot be accommodated by
the Company, your services with the Company may be terminated. In the
circumstances your co-operation in addressing your alleged incapacity will
greatly facilitate this consultation process.
Due to the sensitive nature of this investigation, you will be required to sign a
Consent to inspect your medical and psychological records to enable us to
evaluate the nature, extent and duration of your alleged incapacity, and to
further undergo a psycho - medical investigation at the instance of the
Company. You will be advised of the Company's requirements in this regard at
the above-mentioned meeting.
REMARKS:
1. YOU ARE ENTITLED TO BE REPRESENTED BY A REPRESENTATIVE
FROM THE WORKPLACE AT WHICH YOU ARE EMPLOYED.
2. SHOULD YOU FAIL TO PRESENT YOURSELF AT THE HEARING, THE
HEARING MAY BE HELD IN YOUR ABSENCE WITHOUT FURTHER
NOTICE TO YOURSELF AND ACTION TAKEN ACCORDINGLY.
3. YOU ARE ALLOWED TO CALL WITNESSES IF YOU SO WISH AND
MANAGEMENT SHOULD BE NOTIFIED ACCORDINGLY TO MAKE THE
NECESSARY ARRANGEMENTS. NOTIFICATION SHOULD REACH
MANAGEMENT 24 HOURS PRIOR TO THE HEARING.
4. YOU ARE ENTITLED TO AN INTERPRETER SHOULD YOU REQUIRE
ONE. THE COMPANY WILL PROVIDE SUCH AN INTERPRETER.
5. YOU ARE ENTITLED TO CALL AND CROSS-EXAMINE WITNESS.
6. YOU ARE ENTITLED TO STATE YOUR CASE.
NOTIFICATION ISSUED BY:
INITIALS &
SURNAME:.......................................DESIGNATION:..........................................
SIGNATURE :................................................DATE:..........................................
ACKNOWLEDGEMENT OF RECEIPT
EMPLOYEE
I, the undersigned, hereby acknowledge receipt of the Notification to Attend an
Investigation issued to me on this day. I further acknowledge that the contents
of this Notification has been read and explained to me.
__________________________
SIGNATURE
______________
DATE
ACKNOWLEDGEMENT OF RECEIPT
WITNESS
I, the undersigned, hereby acknowledge that the Notification to Attend an
Investigation was issued to ………………………. on this day. I further
acknowledge that the contents of this Notification has been read and explained
to him/her.
__________________________
SIGNATURE
______________
DATE
To be typed onto a company letterhead
~~~~ Employer Details ~~~~
Name and address of company
~~~~ Employee Details ~~~~
Id of employee etc.
CONSENT TO INSPECT MEDICAL AND PSYCHOLOGICAL REPORTS
I, the undersigned, ________________[insert name of employee] hereby
consent to _________________________[insert name of Employer] ("the
Company") and/or any manager designated by the Company, inspecting any
psychological and/or medical certificates, medical or psychological
evaluations or examinations for the purpose of evaluating my capacity to
perform my duties as a ____________________________ [insert position
of employee, and if necessary, attach a job description or list of tasks
performed by the employee].
I further consent to undergoing a psychological and medical evaluation at the
instance of the Company for the purpose of determining the nature, extent
and duration of any incapacity suffered by myself.
Signed at ....................................... on this the ............ day of .........................
200__.
_______________________________
__________________
Signature
Date
______________________________
__________________
Witness
Date
______________________________
__________________
Witness
Date
CONSENT TO INSPECT MEDICAL AND PSYCHOLOGICAL REPORTS
I, the undersigned, _______________________ (“the employee”) hereby
consent to ABC (Pty) Limited ("the Company") and/or any manager
designated by the Company, inspecting any psychological and/or medical
certificates, medical or psychological evaluations or examinations for the
purpose of evaluating my capacity to perform my duties as a
...........................................................
I further consent to undergoing a psychological and medical evaluation at the
instance of the Company for the purpose of determining the nature, extent
and duration of any incapacity suffered by myself.
Signed at ............................................ on this the ............ day of
......................... 200_.
_______________________________
__________________
Signature
Date
______________________________
__________________
Witness
Date
______________________________
__________________
Witness
Date
To be typed onto a company letterhead
~~~~ Employer Details ~~~~
Name and address of company
~~~~ Employee Details ~~~~
ID No. of employee etc.
CONSENT TO INSPECT MEDICAL AND PSYCHOLOGICAL REPORTS
I, the undersigned, ________________[insert name of employee] hereby
consent to _________________________[insert name of Employer] ("the
Company") and/or any manager designated by the Company, inspecting any
psychological and/or medical certificates, medical or psychological
evaluations or examinations for the purpose of evaluating my capacity to
perform my duties as a ____________________________ [insert position
of employee, and if necessary, attach a job description or list of tasks
performed by the employee].
I further consent to undergoing a psychological and medical evaluation at the
instance of the Company for the purpose of determining the nature, extent
and duration of any incapacity suffered by myself.
Signed at ....................................... on this the ............ day of .........................
200__.
Signature_______________________________ Date__________________
Witness______________________________ Date__________________
Witness ______________________________ Date__________________
~~~~ Consultant / Attorney Details ~~~~
Date
~~~~ Practitioner Details ~~~~
We act on behalf of _____________ (employee’s name), having Identity
Number ________________.
To assist us in representing _______________ in disciplinary proceedings
against her arising from _____________________ (e.g. her absence from
work during May and June 1999), we require clarity regarding the following
information:-
1. The medical nature of her/his illness;
2. The date when such illness was diagnosed by a competent medical
practitioner
3. The duration of her/his absence from work during ______________
and her/his expected date of return to work;
4. Any consequences which her/his illness may have had on her/his work
performance or conduct prior to the medical treatment of her/his illness;
5. What treatment ____________ would be required to receive and the
duration thereof;
6. Whether ________________ would be in a position to resume her
normal work duties, provided she/he complies with medical treatment
prescribed for her/him.
We would greatly appreciate a detailed medical report clarifying the abovementioned questions for presentation at disciplinary proceedings being
conducted by her/his employer, ABC (Pty) Ltd.
Attached, please find a letter of consent from the employee.
Yours sincerely
Industrial Relations Consultant